Monday, April 30, 2012

Last week, a judge in the Netherlands rejected a challenge to the country's new ban on foreigners' entrance to Dutch "coffee shops," where marijuana has long been sold. Dutch citizens will still be able to visit coffee shops with a government-issued "weed pass." I haven't been able to find the actual opinion, but the news stories (e.g., here) report that the law was challenged as violating Dutch anti-discrimination law, and was upheld on the ground that it was justified to fight criminality associated with the international drug trade.

The coffee shop owners have indicated that they will appeal and the case could eventually end up before the European Court of Justice (ECJ) on the ground that it violates the provisions of the EU Treaties governing free movement of goods, services and persons. But if so, the ban will likely be upheld under reasoning along the lines of a December 2010 ECJ ruling that upheld a similar law that only applied in Maastricht. In that case, the ECJ said: 1) Marijuana is illegal under EU law; 2) it is also illegal under Dutch law but "tolerated" in coffee shops by the Dutch authorities, who reserve their enforcement resources for hard drugs; 3) therefore, the provisions of the treaty governing freedom of movement of goods do not apply, because the relevant good here is contraband; and 4) although there is a colorable argument that excluding foreigners from the coffee shops deprives them of the legal services there (provision of food and non-alcoholic beverages), the infringement on the free movement of services is incidental to the prohibition's target of illegal drug trafficking, and a proportional limit.

That all strikes me as plausible, but here I want to consider the issue as a matter of first principle, and then ask what implications it may have for the U.S., which has similar principles as a matter of interstate federalism. The basic principle of origin non-discrimination in a free trade union like the EU or the U.S. (both of which, especially the U.S., are much more than free trade unions, of course) says that a member unit shall not discriminate against commerce--whether persons, goods or services--simply on the basis of the country of origin. Putting aside exceptions and some important details, the basic principle under EU law as well as the parallel provisions in the U.S. (the dormant Commerce Clause, the Privileges and Immunities Clause of Article IV, and the Fourteenth Amendment), requires some scrutiny between the ends and means to ensure that the member unit doing the discriminating is really keeping out something harmful because of the special harms associated with travel or transit, rather than simply discriminating.

If we apply that principle, there is reason to doubt that the anti-crime justification for restricting weed passes to Dutch citizens should hold up. Certainly, the Dutch authorities could first try lesser, non-discriminatory, measures--such as ensuring that only personal-use quantities are sold, whether to Dutch citizens or foreigners. Moreover, critics argue that by cracking down on the coffee shops, Dutch authorities will not keep out foreigners seeking drugs, but simply relegate them to the more dangerous street trade.

Proportionality analysis under EU and Dutch law is structured a bit differently from the parallel inquiry under U.S. law but it's in the same broad family. So how would the case turn out in the U.S.? We don't have Dutch-style coffee shops but we do have a fair number of states that permit medical marijuana. Most (perhaps all?) of these states restrict its sale to in-state residents. Is that justifiable?

The issue may not arise in the current climate because of the federal prohibition on marijuana possession, including for medical purposes. Thus, any dormant Commerce Clause challenge to a state's reservation of medical marijuana permission to its own citizens would founder on the federal Controlled Substances Act, which was upheld by the Supreme Court as an exercise of congressional power under the non-dormant (waking?) Commerce Clause in the Raich case. Another way to put that point is that medical marijuana occupies roughly the same position in a state like California or Colorado as does marijuana in general in the Netherlands: It's banned by the larger political unit (the U.S. and the EU, respectively), but tolerated.

Suppose, however, that we imagine repeal of the federal marijuana prohibition. Now let's consider what would happen with two adjacent states with different laws. I'll take Vermont and New Hampshire. Vermont generally prohibits marijuana but permits it for medical use for state residents. New Hampshire prohibits it across the board. Suppose that an ailing citizen of New Hampshire who would be eligible for medical marijuana if she lived in Vermont, seeks but is denied a license by Vermont on the grounds that she resides in New Hampshire. Would that be permissible?

I tend to think not. Let's assume that, at least for constitutional purposes, the state's general interest in forbidding marijuana possession is valid. Then Vermont has an interest in ensuring the integrity of its licensing system to prevent recreational users masquerading as medical marijuana patients. But the state does not need to forbid out-of-staters from obtaining medical marijuana in order to vindicate that interest. States have an interest in keeping incompetent drivers off of their roads, but they vindicate that interest by requiring either an in-state driver's license for in-staters or an out-of-state license for out-of-staters. They could do the same for medical marijuana.

Now perhaps Vermont might worry that other states license medical marijuana users on less stringent criteria than Vermont does. That concern wouldn't apply to New Hampshireans, who are not licensed for medical marijuana use by their home state at all, but such an interest might be sufficient to require that anyone seeking to use medical marijuana in Vermont first seek and obtain a Vermont license. Even if so, Vermont would need to issue the license to a qualified New Hampshirean.

Suppose, however, that Vermont were to treat medical marijuana like driving: If you live in Vermont, you need a Vermont license; if you live in another state, you can get medical marijuana by showing your home state license. This works fine for driving because every state licenses drivers, but leaves our New Hampshirean out of luck. A Californian or Coloradan in Vermont could obtain medical marijuana by showing the license from his home state, but New Hampshireans cannot obtain licenses anywhere.

Would that regime survive? We could imagine that Vermont might justify it on the ground that it wants to avoid drawing people to the state simply for the purpose of getting medical marijuana. No one from San Francisco or Denver will travel to Montpelier just to get medical marijuana when they can get it at home, but someone from Concord well might. But does a state have a legitimate interest in preventing out-of-staters from visiting the state to take advantage of its laws?

Here too, I think the answer is no. Most of the Supreme Court cases in this area address the limits on a state's power to discourage out-of-staters from migrating to the state to become residents. E.g., in Saenz v. Roethe Court reaffirmed limits on a state's power to deny (or in that case, reduce) welfare benefits as a means of discouraging migration. But in the course of discussing the right to migrate, the Court also affirmed "the right to be treated as a welcome visitor." States have some authority to preserve state resources for state residents rather than visitors, but denying to an out-of-stater the right to purchase medical treatment that the state permits for its own citizens does not fit into that authority.

Whether the foregoing analysis might hold even under the current regime of federal prohibition is a separate question, but I don't think it's a slam-dunk. Saenz, after all, did not root the right to travel in the dormant Commerce Clause, and so it is at least possible to say that the federal Controlled Substances Act has no bearing on the right-to-travel analysis. In other words, perhaps the Constitution ought to be treated as presumptively forbidding discrimination against out-of-staters even with respect to illegal activity. That would be contrary to the ECJ approach in the Maastricht case, but so what? Certainly, if a state discriminated on the basis of race or sex with respect to medical marijuana licenses--even while marijuana was illegal under federal law--that would be a prima facie equal protection violation. Is it obvious that discrimination against out-of-staters is different from race or sex discrimination?

Of course, this could be a case of be-careful-what-you-wish-for. One could imagine that successful litigation requiring states that license medical marijuana to open themselves up to out-of-staters could lead to a backlash: either state-level repeal of medical marijuana laws even for in-staters or stepped-up federal enforcement of the Controlled Substances Act. And one wonders whether the same calculation should apply in the Netherlands: Perhaps coffee shop owners who push too hard to be able to serve tourists could end up losing the right to operate at all.

Friday, April 27, 2012

On Wednesday, the Supreme Court heard oral argument in Arizona v. U.S. (Transcript and other important case docs here.) There has been much press coverage of the case already, so I'll raise a few offbeat observations.

The Chief Justice as Traffic Cop

During the oral argument, I noticed that something happened that seems to be happening with increasing frequency. Two Justices simultaneously started speaking and then CJ Roberts intervened to effectively "call on" one of them. In this instance (at pp 30-31 of the transcript), Justices Sotomayor and Alito both started asking a question, and so CJ Roberts called on Justice Alito. I recall (although haven't bothered to locate in the transcript) another instance during one of the Affordable Care Act arguments, when Justices Sotomayor and Ginsburg started at the same time, and CJ Roberts called on Justice Ginsburg. And I am pretty sure I've seen this happen other times in the last couple of years.

I don't recall CJ Rehnquist doing this sort of thing, although there are plenty of transcripts I haven't read, so it's possible he did. But assuming that this is a new practice under CJ Roberts, I wonder whether his colleagues voted him the authority to call on them? I tend to doubt it. I suspect that the Chief Justice has simply assumed (reasonably enough) that as the presiding Justice, he has the power to conduct the oral argument in an orderly fashion.

But then one might want to know what principle is the Chief Justice using to decide whom to call on. Seniority? Calling on the Justice who started the question first? Calling on the Justice who has been speaking rather than the one who appears to be interrupting the other Justice's line of questioning? Calling on the Justice who has spoken less during the particular oral argument, and thus whose "turn" it is? Just going on a gestalt "feel" that balances multiple factors--much in the way that I do when calling on a student volunteer when more than one has a hand up?

* * *

Two Substantive Points

As most readers probably know, at issue in Arizona v. U.S. is whether four provisions of Arizona's S.B. 1070 are preempted by federal law. (As a technical matter, the question is whether the laws are "probably" preempted, because the case comes to the SCOTUS from a motion for a preliminary injunction, but everyone expects the Justices to reach the preemption merits directly.) The provision that has gotten the most attention in the press and that the Justices spent more time discussing than any other provision is Section 2, which requires AZ state and local officers who have reasonable suspicion to believe that someone they have lawfully arrested, stopped or detained is unlawfully in the country, to make a reasonable attempt to determine that person's immigration status. Here I'll note two interesting questions about Section 2 that were raised but not fully explored during the oral argument.

1) SG Verrilli was having an understandably difficult time persuading the Court that Section 2 is preempted by federal law, in light of the fact that the federal government itself has established a procedure for answering questions about the immigration status of individuals detained by state and local officials. Justice Alito pushed on this point with an interesting hypothetical example. He asked the SG to imagine that S.B. 1070 had not been enacted but that "every law enforcement officer in Arizona saw things exactly the same way as the Arizona legislature. And so, without any direction from the legislature, they all took it upon themselves to make these inquiries every time they stopped somebody or arrested somebody. Would that be a violation of federal law?"

SG Verilli flatly answered that this would not be a violation of federal law, so long as there was no formal state policy that took away the discretion of the officers to follow federal policy directives. When pressed further by Justice Alito, the SG maintained that line, even if the individual officers continued to refuse to follow the federal directives. I was left puzzled about why that should be, and just as the SG seemed about to provide a fuller explanation answer, he was asked other questions by other Justices, and the argument was diverted.

Trying to fill in the gap, I think that what the SG might have been driving at was that if individual state and local officers spontaneously and independently settled on the approach that is mandated by Section 2, then we would not be faced with a policy that works in conjunction with the other policies to further Arizona's more restrictive immigration policy, which, taken as a whole, contradict the immigration enforcement priorities set by the federal government.

At least that's where I think the SG might have been going. But the foregoing answer has the disadvantage that it means that Section 2 would not be preempted if it were the entirety of S.B. 1070. Yet I don't read the federal government to be making that argument. Instead, I read the S.G. to be saying that each challenged provision of S.B. 1070 is independently preempted by federal law.

Accordingly, perhaps the SG should have answered Justice Alito's question by saying that federal preemption applies to state executive action no less than to state legislative action and that if the conduct of state and local officials--taken in the aggregate and whether or not coordinated--has the effect of undermining federal priorities, it is preempted. I'm not sure whether that would be a persuasive argument, but I do think it is at least plausible to suggest that there may be conduct which, if engaged in sporadically, is legal, but when engaged in consistently, is illegal. The SG also could have fought the hypo by saying that if every state and local official took this stance, we would have excellent grounds for inferring that, despite what they said, they were in fact carrying out state policy.

2) Another line of questioning concerned whether an executive policy of exercising prosecutorial discretion in a particular manner could have preemptive force. CJ Roberts and both Justices Scalia and Alito pressed SG Verrilli about this point. Justice Scalia asked the SG for a prior case in which the Court had said that such an exercise of prosecutorial discretion could have preemptive force. The SG did not offer any examples, shifting gears by stating that, at least some of the challenged provisions were preempted by federal statutes themselves. But suppose that's not true of Section 2--or for that matter, of some totally different state statute in a different case. Should it be possible for the federal executive to preempt state "over-enforcement" of a federal law by exercising its prosecutorial discretion?

A federal executive agency could promulgate a regulation setting out its enforcement priorities and, so long as that regulation-making power was procedurally sound (per the Administrative Procedure Act) and substantively within the scope of a delegation of power from Congress (per Chevron and the nearly toothless non-delegation doctrine), such a regulation would preempt state enforcement regimes that were inconsistent with the federal policy. That's just good old preemption doctrine: Federal law--whether it comes from the Constitution, a statute, or a regulation--preempts contrary state law.

But the question is whether the federal executive branch can do what I've just described through an unwritten policy of exercising prosecutorial discretion. I'm not an expert in administrative law, but I share Justice Scalia's skepticism that it has ever been tried. Perhaps Congress could expressly authorize a federal agency to preempt state laws through the federal agency's exercise of prosecutorial discretion, but I'm not even sure of that. After all, the Supremacy Clause makes the Constitution, treaties and laws of the United States supreme over state law, and while an agency regulation can plausibly be described as a "law" of the United States, it is hard to see how the exercise of prosecutorial discretion is a kind of federal "law" that preempts state law. One might think that discretion is the very opposite of law. In any event, here Congress certainly has not authorized any federal agency to give preemptive force to its exercise of prosecutorial discretion, so the skepticism of the Chief Justice and Justices Scalia and Alito on this point appears doubly warranted.

Although it's not entirely clear from the transcript of the oral argument, I didn't read the SG to argue that the federal government's exercise of prosecutorial discretion was preemptive. He appeared to say--and said clearly in his brief--that Congress's statutory grant of prosecutorial discretion to the executive, in combination with federal primacy over foreign affairs--itself displaces S.B. 1070. The difficulty for the S.G. on this point, however, is that his argument appears undifferentiated. Any state and local efforts to enforce federal immigration law will in some measure undermine the exercise of federal prosecutorial discretion; yet we know that some state and local enforcement efforts are permitted. So, in the end, the invocation of federal prosecutorial discretion seems like no more than a kind of tie-breaker in favor of preemption in an otherwise close case. Whether this case appears to the Justices to be otherwise close remains to be seen.

Thursday, April 26, 2012

In my new Verdict column today, I began a multi-part series of columns in which I will discuss the likely policies that would be implemented during a possible Romney presidency. Before proceeding to the substance of that task, however, today's column laid the groundwork by discussing two threshold issues: whether Romney can win (that is, whether it is even worth our time wondering about what he would do as President), and what broad principles would inform his approach to setting his policy agenda.

On the first point, I emphasize just how weak and problematic Romney is as a candidate. Given everything that is going in Romney's favor -- led, first and foremost, by the still-weak economy -- it is simply shocking that the early polls show a statistical dead heat. Even an ultimately close election should, at this stage, look bleak for any incumbent presiding over this economy. That Obama's political team is so frequently inept should only strengthen Romney's position. Yet, because of Romney's complete emptiness as a candidate (I refer to his strategy of trying to turn his lack of a moral core into his core electoral asset: "Nominate me! No one believes what I say, anyway!"), he is very likely to lose this thing for the Republicans.

Like the party's failure to take the Senate in 2010, because of its insistence on allowing incredibly vulnerable candidates like Harry Reid in Nevada and Chris Coons in Delaware to win against complete embarrassments, an inviting opportunity to knock off Obama could easily be squandered. Obviously, this is all to the nation's benefit (and the world's), notwithstanding my frequent criticism of Obama over the last three years.

On the second point, Romney's likely ideological agenda, I argue in my column that the notion that he would govern as a moderate conservative simply makes no sense. If anything, he will be given less room to deviate -- even a tiny bit -- from the conservative movement's ideological agenda than would a true conservative, precisely because of his well-known lack of a guiding set of principles (other than personal political ambition).

In that part of the column, I started to run out of synonyms for "opportunistic" and "unprincipled," but I did manage not to use any form of the word "mendacious" (no matter how apt it would have been). Going forward,therefore, my columns will essentially be based on the assumption that President Romney will be an obedient servant of his party's radicalized arch-conservative base. He calls Wisconsin Gov. Scott Walker a "hero," and he completely embraces Rep. Paul Ryan's insane budget plans. He will not be able to move away from those positions as President.

Toward the end of the column, I entertain the question of how Congress fits into the story. I first make the obvious claim that the House will not flip back to the Democrats on a night that Romney wins the White House. But what about the Senate? For my future columns, I will assume that the Senate is filibuster-proof, both because I think that such an outcome is likely in a scenario where we end up with a President Romney, and because that is the outcome under which we would have the most interesting -- that is, terrifying -- set of policy possibilities.

If the Democrats hold the Senate, however, the story must obviously change. In my first draft of the column, I wrote that a Senate with a Democratic majority would mean that "virtually nothing" would happen under President Romney. During editing, I deleted that claim and instead wrote: “No major legislation would pass, but the full force of the Executive Branch would be in the hands of a President who is beholden to the most extreme elements of his party.” Here, I will add two broad comments.

First, one must acknowledge that the Democrats are notoriously weak-kneed, especially in the face of a Republican President. While there have been important moments of unity -- most notably, the successful resistance to George W. Bush's plan to partially privatize Social Security, even though the Democrats were in the minority in both houses at the time -- it is easy to picture a handful of self-styled moderate Democrats in the Senate refusing to join in filibusters. Even with Ben Nelson retiring, and Evan Bayh all but forgotten, there is a never-ending supply of Democratic Senators who could somehow convince themselves to join the Republicans on key issues. At least on budgetary issues, my leading candidates are Mark Udall and Ron Wyden, who have already said and done silly things in the name of bipartisanship. Even if I am wrong, however, we would surely see some Senators taking the bait to become "statesmen" in the eyes of Very Serious People like Thomas Friedman of The New York Times, and all of the pompous heirs to the David Broder school of punditry.

Second, even if I am still wrong, and 41 or more Senate Democrats successfully fight off major legislative changes (and, even less likely, block Alito/Scalia-style judicial appointments), the damage of a Romney presidency would be real and extreme. A recent NYT front page article noted that the Obama team has been honing its ability to bypass Congress to get things it wants accomplished. Executive Orders, agency action, and all the rest are currently being used to serve centrist (or, at most, center-left) goals, having been adapted from the model of extreme executive authority set in motion during the Bush/Cheney years -- which were, of course, amped-up versions of the expansions of executive power under Clinton, which were themselves audacious extensions of the Reagan/Bush effort to roll back the restrictions of the post-Watergate years. Oy.

All of this is why, in the midst of my criticism of Obama throughout 2011, I conceded that there was no way that any liberal (or, I would now add, anyone who disagrees with any aspect of the Koch brothers' agenda) could fail to come around on Obama in 2012. The "under the radar stuff" is more important than ever. As we saw under Bush II, staff decisions were being made on religious grounds. Under Obama, the NLRB failed to fly under the radar at one point, but it has still insisted on enforcing labor laws, rather than gutting or ignoring them.

Therefore, my initial intuition that "virtually nothing" would happen under continued divided government is obviously wrong. RomneyWorld would be even scarier if the Democrats had no remaining sources of political power, but even a strong Senate opposition would not be enough to prevent an onslaught. I am very disappointed by Obama's Presidency (although he has gotten much better since last summer's debt ceiling debacle.) But the alternative -- even under Mitt the Mock Moderate -- is horrifying.

Wednesday, April 25, 2012

Here's a puzzle: Why aren't Paul Krugman's Keynesian views more popular? Krugman has been more or less running around with his hair on fire ever since the start of the Great Recession arguing that the U.S. needed a much larger stimulus than it got and explaining why, per Keynesian theory, austerity measures in Europe would not lead, and have not led, to growth.

It's not hard to see why American Tea Partiers resist Keynesianism. The American right has long sought to reduce the size of American government--or at least to reduce taxes--and they regard Keynesian stimulus as simply a means by which the left justifies expansion of government programs that the right wants to eliminate. That's the political explanation, anyway, but it usually travels with a number of economic claims.

One such claim is nicely ridiculed by Krugman's repeated discussions of the "Confidence Fairy," a being he treats as about as real as the Tooth Fairy. Believers in the Confidence Fairy, Krugman says, expect that austerity will lead to economic growth because responsible government behavior will give private investors confidence that they can make secure investments, rather than worrying that borrowing today will lead to taxes tomorrow.

Another anti-Keynesian view worries about borrowing costs. Here the concern is that when the government spends borrowed money, it raises the cost of borrowing for private investors. That would be true in an economy at or near full capacity, but it's generally false when the economy is in recession--as the persistence of low interest rates in the U.S. attests.

Hayekianism provides the most sophisticated source of anti-Keynesian thinking. Hayekians say that stimulus at most promotes an artificial boom, which then leads to a bigger bust, and so in the end the economy is less distorted--and the boom/bust swings are less severe--when the government does not attempt to manipulate matters through fiscal policy. The case for and the case against Hayekianism are more complicated, so I won't go into them, and in any event, I'm not really interested in drawing economic conclusions here; I'm more interested in giving a causal explanation for the views that people appear to hold. I am sure that there are plenty of economists who choose between Keynes and Hayek based on their assessment of the theory and evidence, but when people without serious knowledge of economics proclaim themselves to be followers of Keynes or Hayek, they are likely just picking a macroeconomist based on their ideological commitments.

But that brings us back to the puzzle. It's easy to see why anti-government American Tea Partiers would sign on with Hayek. And given how far to the right American politics is relative to the rest of the democratic world on questions of the proper scope of government, it's not surprising that the skepticism of Keynesianism would extend pretty far into the middle of U.S. public opinion. But that leaves the question of why Europeans seem to be at least as anti-Keynes as the American right. After all, Europeans have had over half a century to get used to much more generous welfare states than the U.S. ever had, so it's very surprising that they have not been embracing a set of economic ideas that should greatly soften their landing. As this NY Times story notes, the European skepticism of Keynesian stimulus is beginning to soften, but for much longer than one would have expected, Europeans have maintained a commitment to austerity as the path out of their troubles. The question is why.

One possibility is the dominance of Germany and Germans over the rest of the Europe on economic matters. The Germans themselves live in perpetual fear of the return of Weimar-style hyper-inflation, and so they recommend austerity policies even when the greater risk is deflation. One might think that the preference for austerity in Europe is really just a German preference that is dominant because of Germany's dominant economic position. To this story of German dominance, one might add that even technocratic political leaders from southern Europe like Mario Monti and Lucas Papademos have worked for so long in the European organs that Germans and other northern Europeans dominate that they merely extend Germany's influence to Italy and Greece, respectively.

I don't want to deny the foregoing explanation, but I think it is still incomplete. In my admittedly unscientific impression of European public opinion, I have found that (at least until very recently) even the sorts of people who would likely be Keynesians in the U.S. (i.e., liberal academics), have tended to regard Keynesianism skeptically.

And that brings me to my final hypothesis: I think that much opposition to Keynesianism, both here and abroad, comes from a kind of moralism that regards it as a cheat. Just as individuals who borrow and spend profligately have an obligation to work off their debt (rather than to get bailed out), the anti-Keynesian moralist thinks, so too governments that borrow and spend their way into an economic crisis have an obligation to tighten their belts to climb back out of the hole. In this view, the Keynesian idea that the best course after the economy has crashed because of high debt load is to borrow and spend some more seems not just perverse but positively immoral. Accordingly, we have an explanation for why Tea Partiers and many others commonly conflate bailouts of private firms with government stimulus spending.

More generally, the hostility we see to Keynesianism probably has less to do with people being persuaded by Hayek than it has to do with their viewing the world in the way that Weber said that northern European Protestants viewed the world in his Protestant Work Ethic and the Spirit of Capitalism. My recollection from having read Weber (long ago) was that there was debate about the degree to which he correctly identified Protestantism as the driving force behind capitalism. But the spirit of capitalism itself is widely diffused among Europeans. Indeed, without it, the relatively generous social welfare states could never have taken root, because a society filled with shirkers who prefer the dole could not afford the dole.

Indeed, I think that the "spirit of capitalism" to which Weber referred may even be ascribed to Western culture more broadly. Think about Lenin, paraphrasing the New Testament in his statement "who does not work, he shall not eat." Insofar as Keynesian stimulus promises a free lunch, it contradicts a deep moralistic strand of Western thinking. That doesn't justify opposition to Keynesianism, but it may explain what is otherwise a puzzling resistance.

Tuesday, April 24, 2012

I recently watched a TV panel discussion about tax complexity, in which an economist made an interesting point about the "individual mandate" of the ACA and the sophistry of the activity/inactivity distinction. She noted that the mortgage interest deduction -- that most sacrosanct of tax breaks -- can readily be characterized as a mandate to buy houses. How? If a person does not want to engage in the activity of owning a home, then that person will end up paying more in taxes than if he decides to engage in that activity. This logic extends at least to all "tax expenditures" (that is, the tax-based government subsidies so popular among Republicans and Democrats alike), if not all tax rules more generally, because the system is set up to make taxes higher -- a tax penalty -- for those who do not take advantage of the tax-favored behavior.

Of course, this argument is not exactly new, or even all that different from many arguments that I have read elsewhere. Indeed, as Professor Dorf wrote on Verdict after the Supreme Court's hearings in March on the ACA, Justice Sotomayor made exactly this kind of form-versus-substance argument, showing that the activity/inactivity distinction can easily be reduced to the empty phrasing that it is. If we can recharacterize the ACA's individual mandate as nothing more than a tax cut for people who choose to buy health insurance, how in the world is it a dangerous extension of the government's scary powers to force people to do things that they would otherwise not do?

Although none of this is new, the economist's construction of the argument does seem to cut through the nonsense in a way that is better than I have seen elsewhere. I could not help thinking about how one would construct a constitutional argument against the mortgage interest deduction. Congress did not call the mandate a "tax." Indeed, they called it a "tax deduction," which is (somehow) different. Unless we force Congress to admit that it is forcing people to do things, then we are on a dangerous road to allowing them to stealthily take away our liberty. (See how easy it is to abuse this language?)

So, to prevent Congress from abusing its power, a limitation must be derivd from the Commerce Clause, right? And here, the argument that Congress can regulate housing is much weaker than the argument that it can regulate health care. Although it is true that everyone must live somewhere, choosing not to live in a dwelling that one owns is not inevitable. That is, the ACA's backers have defended the mandate on the basis that people who choose not to buy health insurance are only temporarily sitting out of a market into which they will all ultimately be forced to enter. We will almost all end up in emergency rooms or doctors' offices at some point, and Congress has the power to set rules to make that market work better. By contrast, people who do not buy homes might never buy homes. Yet the mortgage interest deduction forces them to pay a penalty to stay out of that market.

There is even a decent claim (by the standards of this debate) that housing is not interstate commerce. A person can only live in one place at a time, and if she stays in one state for her whole life, then she is not engaged in interstate commerce. Of course, as a fan of Wickard v. Filburn, I find that fatuous, because it is easy to see how local decisions have national implications. Again, however, the point here is that housing decisions can only be characterized as interstate commerce by reference to the effects of local decisions on home prices, mortgage rates, and so on, which affect people in other states.

All of which brings to mind another tax-based oddity of constitutional law. As noted above, we know that tax deductions (and other tax incentives) amount to a government subsidy. That is generally the point. We want to make life easier for families, so we pass the Child Tax Credit, as an alternative to simply sending people a check to help cover the cost of raising children. This means that the government is giving money to people with children. Obviously, this logic applies equally to personal exemptions, which are a per-person subsidy received by all taxpayers.

The Supreme Court has noted that the charitable deduction also amounts to government subsidization of the tax-exempt recipients of donated funds. If I am in the 25% income tax bracket, a $100 donation to the Church of the Fonz costs me $75, while it costs the government $25. We approve of this subsidy by lauding the decentralized nature of the decision making. So long as we do not subsidy extremely unacceptable behavior (such as the university rules against interracial dating in the Bob Jones University case), then each person in the country is empowered to be her own little Appropriations Committee, deciding to put some of her own money up with some government funds to support a favored charity. Let a thousand flowers bloom!

As many have noted, of course, the uncomfortable extension of this logic is that the charitable deduction violates the Establishment Clause. We (including, especially, the Supreme Court) look the other way when the government's tax rules allow money to be diverted from the Treasury to religious organizations.

There are surely good reasons to maintain legal fictions and to draw arbitrary lines. For purely political reasons, polite people simply never bring up the Establishment Clause problem with the charitable deduction. Even so, the basic logic of how taxes work -- and the ease with which one can flip back and forth between viewing any tax rule as a penalty or a benefit -- makes it utterly arbitrary to describe some tax rules as violations of liberty, while we view others as virtuous methods to encourage civic engagement.

Monday, April 23, 2012

My latest Verdict column discusses last week's SCOTUS decision in Filarsky v. Delia, unanimously holding that part-time government employees are entitled to qualified immunity when performing functions that would give rise to qualified immunity if performed by full-time government employees. As I explain in the column, the decision is sensible on its own, but troubling when juxtaposed with the Court's decision earlier this year, in Minneci v. Pollard. In Minneci, the Court declined to recognize a damages remedy (aka a "Bivens" action) against guards in privately-run federal prison. I note the tension between the two decisions: A broad willingness to make law beyond the text enacted by Congress when doing so benefits civil rights defendants (Filarsky) but unwillingness to make law beyond Congressionally enacted text to benefit civil rights plaintiffs. I say that the most logical explanation for the juxtaposition of results is that the Court--including nearly all of the supposedly "liberal" Justices--are unsympathetic to civil rights litigation.

My column laments, but does not try to explain, why the liberals--with the exception of Justice Ginsburg, who dissented in Minneci--appear to share in the hostility to civil rights litigation on display in the Filarsky/Minneci juxtaposition. Here I'll hazard a few thoughts on causation.

I'll begin the exercise by noting the obvious caveat that the premise itself is contestable. Certainly a study of a much larger set of cases would show that the relatively liberal Justices are, on the whole, more sympathetic to civil rights cases than are the conservative Justices--controlling, of course, for the civil right alleged; conservatives would prove more sympathetic to civil rights claims with an ideologically conservative valence, such as Second Amendment claims, claims by whites challenging race-based affirmative action, claims by religious conservatives challenging gay-rights laws, etc. But even with those caveats, when dealing with a garden-variety civil rights lawsuit of the sort at issue in Minneci (an 8th Amendment claim) or Filarsky (a 4th Amendment claim), there is at least a prima facie incongruity in need of explaining when seemingly liberal Justices appear more sympathetic to defendants than to plaintiffs.

Let's consider the "liberal" Justices one at a time:

(1) As noted, Justice Ginsburg gets a pass because she dissented in Minneci. It's not surprising that she would be the most liberal Justice on civil rights litigation, as she is the only member of the Court who, as a practicing attorney, made civil rights litigation for plaintiffs the core of her work.

(2) Justice Breyer wrote the majority opinion in Minneci and I think the key to understanding his views here is to recall that as an academic, Justice Breyer's specialty was administrative law. That was true of Justice Scalia too, but Justice Breyer, unlike Justice Scalia, is a true believer in the administrative state. Although when push comes to shove Breyer is a fairly reliable liberal on high-profile culture-war issues, in some ways he is a bit of a throwback to New Deal liberalism. Progressives from the turn of the 19th/20th Century through the late 1930s battled conservatives over the proper scope of the administrative state. Some of those battles were fought on the turf of the scope of economic liberty. Others were fought on the turf of the scope of federal (versus state) power. But there was also a third front: The proper scope of administration. And in those days, it was progressives who generally wanted to be able to insulate administrative decisions from challenge in the courts. Partly that was opportunistic because the judges were more conservative than the administrators. But there was also a structural reason for this alignment: Modern regulatory agencies exist chiefly to regulate private power, and thus lawsuits challenging the actions of government officials would, on balance, impede the ability of the government to regulate powerful corporate and other private actors. To the extent that civil rights litigation is simply another species of litigation against the government, one who thinks, as Justice Breyer does, that government needs regulatory power, will be skeptical of civil rights litigation.

(3) Justice Kagan fits mostly into the same model as Justice Breyer. She also specialized in administrative law and as a former lawyer for the federal executive branch in the Clinton and Obama administrations, it is not really surprising that her attitude towards litigation against government officials would be ambivalent.

(4) That leaves Justice Sotomayor. Although the administrative state explanation does not apply to her, Sotomayor's pre-judicial career consisted mostly of her work as a prosecutor and a private practice attorney. She may have sympathized with civil rights plaintiffs, but so far as I know, she didn't represent them. The people on whom she would have relied as witnesses (police) were probably sometimes defendants in civil rights cases. Nonetheless, I don't want to rely too heavily on Justice Sotomayor's prior practice experience as an explanation here, because in criminal procedure matters, she has proved to be a fairly reliable liberal--despite predictions by some that her prosecutorial experience would make her more conservative on those issues. So Justice Sotomayor presents us with perhaps a small puzzle.

Thus, in the end, I don't find much of a mystery here. Certainly nothing I've written here undermines the conclusion of my column: The center of the Supreme Court has shifted substantially to the right in the last generation.

Friday, April 20, 2012

The online version of The Wall Street Journal had an interesting article last week, questioning the value of undergraduate business majors. It turns out that 20% of all undergrads in the U.S. major in business, more than double the next most popular major ("social sciences and history," which is actually about a dozen majors combined into one category). I knew that the number was high, but this was a truly surprising number.

As a former economics professor, I have some interest in this subject. As a current law professor, I also see some parallels between this discussion and the current call for teaching more "practical skills" to law students. At both the undergraduate level and in law school, I continue to think that "learning to think and communicate effectively" is what we should be teaching. Here, I will discuss a few points from the WSJ article, and then I will compare and contrast these points in the undergraduate and law school contexts.

My interest in the controversy over business majors actually dates to my days as an undergraduate, long before I knew that I would end up being a professor. I attended a liberal arts college (Vassar) that did not offer business majors. I majored in economics, because I was interested in economics. (What a concept: Majoring in something because you actually are interested in it!) I quickly discovered, however, that many of my fellow econ majors would have preferred to major in business, if only Vassar had offered a good, "practical" degree.

The WSJ piece makes the case against undergraduate business majors, and it does so from the standpoint of employers. This would have utterly flummoxed my undergraduate classmates, who were sure that their future employers would never take seriously mere economics majors (or certainly music or history or English majors). The WSJ notes: "The biggest complaint [from, among others, corporate recruiters]: The undergraduate degrees focus too much on the nuts and bolts of finance and accounting and don't develop enough critical thinking and problem-solving skills through long essays, in-class debates and other hallmarks of liberal-arts courses."

If firms are not looking for students who have already learned how to, say, read a corporate earnings statement, then what are they looking for? " 'Firms are looking for talent. They're not looking for content knowledge, per se,' says Scott Rostan, founder of Training the Street Inc., which provides financial training courses for new hires at a number of investment banks. 'They're not hiring someone just because they took an M&A class.' "

Seems like a pretty strong case for students -- even those whose parents are pressuring them to maximize their employment prospects -- to stop majoring in business. In any case, universities are now apparently responding, including my current employer. A recent conference here at GW was devoted to changing business majors to require more liberal arts education.

I should note that, from the standpoint of people like me (both when I was a student, and when I was an economics professor), the purely self-interested response is to allow universities to continue to offer business majors, without any liberal arts requirements. My undergrad classes were much less interesting than they would have been, had there not been so many uninterested wannabe business majors taking up space. Similarly, when I was a visiting professor at Barnard College in 1997, I taught a very large "Money and Banking" class that was mostly populated with Columbia College students who saw themselves as pre-Wall Street majors. They were not at all interested in the actual subject matter of a Money and Banking class, as taught in economics departments. I was teaching them about monetary theory, and how financial institutions affected the overall economy. The business-obsessed students wanted to know how banks financed mergers and hedged risks.

The point of an education, however, is not to indulge what students think they ought to be learning in a class. Notwithstanding claims to the contrary, students are not "customers," and universities are not their servants. It is good that GW and other schools with business majors have decided to force their business students to become more broadly educated, requiring them to learn to think about the world in different ways. Happily, moreover, this is a case in which good pedagogy also happens to serve the career interests of students.

What about the analogy to law school? The obvious difference is that law students have already earned their college degrees, where they are supposed to have been broadly educated (leaving aside those with degrees from non-liberal arts colleges -- which significantly complicates things). Moreover, law students are here to become trained as lawyers. Should these differences mean that there is simply nothing to be learned by law schools from the re-thinking of the undergraduate business degree?

I think that law schools ignore these issues at their peril. Moreover, I fear that all of the current trends affecting law schools are pushing us in exactly the wrong direction. As I wrote on Dorf on Law last Fall (here and here), it is a mistake to think that law school should be a place where people pay tuition in order to learn where to file legal documents, or how to track down and fill out the right forms. Yet much of the push in legal education lately (and, even more, from critics outside of the legal academy) has been designed to force law schools to be "practical" in ways that suggest that law schools' primary task is to teach students how to perform specific legal tasks, rather than to prepare them to be capable of dealing with a changing legal landscape.

I am a big fan of legal clinics, and I am very glad that most law schools (including mine) offer excellent opportunities for externships and internships, skills courses, and so on. Even so, every time I speak with an established lawyer who hires young lawyers, what I hear is NOT that the students do not know how to draft a commercial contract, or even that they took too many "Law and ..." courses. Instead, the universal complaint about law schools always boils down to two issues: (1) Too many law students do not know how to think critically and creatively, extending what they know and applying it to new issues and questions, and (2) Too many law students are poor writers.

Both of those problems should be remedied across the law school curriculum. We can teach students to be better writers in almost all of their classes, both traditional and skills-based. The same is true for teaching students to think critically and creatively. We are, of course, exposing students to a highly developed body of knowledge, including brief tastes of substantive areas of the law. What we are trying to accomplish, I think, is to equip our students to be flexible and agile in their thinking. That goal simply cannot be measured against some notion of "teaching practical skills."

There is always the temptation to give students a set of skills that are highly specific, but that do not equip students to change, when change is needed. What has been traditionally thought of as a liberal-arts education has been adapted to the modern law school, preserving the professional training that we provide, but arming our students with the best weapon that money cannot buy: The ability to adapt and thrive. Moving away from the liberal arts conception of education will ultimately harm our students.

Thursday, April 19, 2012

Now that the Republican Presidential field is down to Mitt Romney and two delusional men, the Romney campaign is taking its presumptive-nominee status and turning its attention to attacking President Obama nonstop. No problem. That is what campaigns do, and if anything, Romney's people must surely be feeling deprived. Their guy was never going to lose the nomination (unless he acted as if he could not lose). Nevertheless, they lost about two months of good early-season sliming, and they are keen to make up for lost time.

There is no reason to think that this campaign is going to somehow move to a higher plane than recent campaigns. Now-Senator Al Franken's book-length observation that the Bush/Cheney '04 campaign was based on "fear, smears, and queers" was spot on, and the McCain/Palin '08 campaign (with one or two notable moments of honor) intensified the sense that all bets are now off in political campaigns. And with "independent" groups now following in the ignominious steps of the Swift Boat ugliness, a new age of enlightenment is nowhere in sight.

Most of the truly disgusting moments in recent campaigns have been based on personal attacks, and I suspect that this will continue into the current campaign. It is simply not that easy to make a visceral appeal to truly base instincts on economic issues, in the same way that the Roves of the world can exploit racism and xenophobia. Not that they would be shy about trying, of course. And given that "it's (still) the economy, stupid!" we should expect an onslaught of claims that are -- if not exactly ugly in the "Obama is a Kenyan terrorist" mode -- at least astonishingly dishonest.

Which brings us to the first wave of the Romney campaign's economic claims. Any non-incumbent in a still-weak economy would run against the economy, attempting to blame the incumbent for everything that is wrong. No matter what else is said, "You've been in charge for over three years, and there are still millions unemployed," is going to resonate with voters. There will be garden-variety distortions, playing with statistics, and so on. But we generally do not expect anything in this realm that is jaw-droppingly offensive, unlike so much of the modern Republican playbook.

Because of polling that shows women strongly favoring Obama over Romney, the Romney campaign came up with a clever idea for its first coordinated theme-of-the-week: The economy is bad, and it is particularly bad for women. Inventing this case against Obama, however, required taking some steps that, especially when combined as Romney has combined them, more than crossed the line into: "Wait, they can't really be saying that, can they?!"

The big political buzz late last week covered some of this. PolitiFact (which has, shall we say, an imperfect record for identifying and calling out dishonesty) correctly faulted Romney for a deliberate distortion. Romney's claim that women had suffered 92.3% of all job losses since Obama took office was technically true, but the statistic was essentially meaningless, and the Romney spin on it was simply false.

The economy had started to tank long before Obama took office, and male-dominated industries were the first to be hit, with heavy layoffs in construction and manufacturing. Service and pink-collar companies were hit only later, after the first wave of devastation started to filter into the marrow of the economy. As this played out, it happened that the bottoming out in male-dominated industries happened while Bush was still in office, whereas the bottoming out for women happened during the first few months of Obama's term.

All very interesting, and the debunking was quite welcome. But because this is not something that even most economists would have been able to see through on a gut level, one has to admit that it was very clever. Romney took a time-honored out-party tactic -- blaming the current administration for everything that it inherited -- and exploited a cute twist that just happened to show up this time around, with the gender differences falling on either side of January 21, 2009.

Although I called such distortions time-honored, I must stop here to say that I do find the Republicans especially shameless in their insistence on blaming Obama for everything that has happened literally since Day One of his term. This would be nervy, even without the new gendered spin. My impression has always been that, when the Bush team tried to distance itself from the bursting of the Clinton-era internet bubble, pro-Democratic economists admitted at the very least that Bush could not be blamed for the direction of the economy in his first few months in office. Now, the Republicans seem to refuse to concede even the slightest economic lag time.

There is an extra dollop of awfulness here, however, involving a galling twist on a different time-honored move -- a time-honored move that Republicans, yet again, have ratcheted up to previously unseen shamelessness. The "blame the incumbent" strategy is basic, but it brings with it the question of what the other party has been doing for the last three years. The answer, as we know, is that the Republicans have done everything possible to make sure that there is no good news for which Obama could take credit. They have successfully prevented the government from reducing the unemployment rate, by fighting all stimulus measures, and by allowing state and local governments to slash their budgets, all but negating what little stimulus the federal government has been able to provide.

That is chutzpah. The out-party goes out of its way to weaken the economy, and then runs on the platform that the economy is weak. That is, again, something that has been present in U.S. politics on both sides of the aisle forever, but the extremely high degree of purely destructive obstinacy by Republicans in the last few years takes it into a different category of dishonesty.

And now that final dollop of awfulness. It is actually not mostly "service and pink-collar companies" that explain the lag in layoffs for women. It is layoffs of teachers. Understandably, most school districts delayed the painful choice to lay off teachers for as long as possible. Finally, after their revenues and rainy-day funds were gone, they asked for federal help. No help came, and the layoffs began. A clear majority of teachers are women, so women were overrepresented among the later rounds of layoffs.

Why was there no federal help? The Republicans refused to allow spending to rise. Obama and the Democrats argued, fruitlessly, to provide aid to states and cities precisely to avoid teacher layoffs.

So, it is not just that the Republicans are blaming Obama for everything that happened from the moment he took office. It is not just that they are making this a "women's issue" by exploiting a timing quirk in the patterns of layoffs of men vs. women. It is not just that they are blaming Obama for an overall weak economy that they -- more than anyone -- have been holding back.

It is that they want women to be angry at Obama because teachers were laid off after he took office. Teachers. Teachers. The same teachers that Republicans have been ridiculing as overpaid and underworked, glorified babysitters. The same teachers that one prominent Republican governor famously yelled at for being greedy. Women are supposed to be angry at Obama because a lot of teachers lost their jobs, after Republicans refused to send money to the states. This is supposed to make them more willing to vote for Romney. This is beyond chutzpah.

Wednesday, April 18, 2012

In my column for this week, published today on Justia's Verdict, I discuss the competing visions of reality that, respectively, animate supporters and opponents of "Stand Your Ground" laws. These are laws of the sort that police cited for their initial failure to arrest George Zimmerman for killing Trayvon Martin. In the column, I focus on the fear that typically precedes violence in self-defense and the sorts of situations that are likely to give rise to that fear.

In this post, I want to take up a related issue concerning people who experience some strong feeling -- whether it is fear or sexual arousal -- in response to another person's clothing. The issue is how we ought to respond when the person who experiences that feeling goes on to act on the feeling in a manner that would ordinarily represent violence in violation of the criminal law.

About a month ago, Geraldo Rivera reportedly stated the following: "I am urging the parents of black and Latino youngsters particularly to not let their children go out wearing hoodies. I think the hoodie is as much responsible for Trayvon Martin’s death as George Zimmerman was." Though Mr. Rivera has reportedly apologized to Trayvon Martin's parents for this statement, part of what interests me about it is its similarity to the comments people have historically made about some of the women who accused men of rape. Regardless of what Geraldo Rivera really thinks, in other words, many people view clothing as legally binding provocations or invitations of one sort or another.

In both kinds of situation, someone is accused of committing a violent act against another but claims that the victim of the violent act in some way "asked for it" by dressing in a particular way and thereby inspiring feelings (respectively, of fear and of lust) in the accused perpetrator of the violence. The purported compliment "You look ravishing!" helps illustrate the idea that a woman's appearance was once (and may sometimes still be) seen as legitimately provoking forcible sex (the meaning of "ravish").

Sometimes, moreover, defenders of the violence in question -- against the hoodie-wearer and against the scantily clad woman -- have also suggested that the clothing in question not only reasonably triggered the allegedly violent conduct that followed but that the clothing also made it likely that the victim's story was a lie -- that the victim actually did something concrete (beyond the clothing) to initiate an attack that ended in his own killing and that the alleged rape victim actually did something to initiate sexual contact with her alleged rapist and was not in fact raped. The clothing (the hoodie and the sexy outfit) thus function in two ways: as itself provoking the violence, and as evidencing an intention on the part of the wearer to act in other ways (by attacking someone and by initiating sexual contact, respectively) that would call for and justify the allegedly violent behavior that followed.

These two moves are invidious and destructive for a number of reasons. By contrast to words, clothing almost never represents an unambiguous communication of a particular message by the wearer to the public. It is obviously possible (and quite common, in fact) for a person who intends no harm or violence to anyone to wear a hoodie, and it is also possible for a woman who has no intention of having sex to wear a revealing outfit. People wear the clothing they wear for many reasons, including its comfort and their own aesthetic enjoyment of how they look in it. It is not safe to draw communicative inferences from clothing.

It is accordingly inappropriate to infer from the fact that a person is wearing a particular outfit that he or she is interested in or planning to engage in violence or in sexual activity. It is unreasonable to regard the shooting of a young man as self-defense because the young man was wearing a hoodie (or any other outfit that makes some people uncomfortable). And it is similarly unreasonable to regard forcible sexual intercourse with a woman as consensual because the woman was wearing a "provocative" dress.

What Geraldo Rivera's comment and the inference of sexual consent from clothing share is the notion that the "real" victim is the person who perpetrated violence against another person rather than the person who dressed in a manner that gave rise to desires and "expectations" on the part of the alleged perpetrator. On this approach, it is the job of members of minority groups and of women to dress in a manner that conforms to the wishes of white people and of men, respectively. Trayvon Martin should have dressed in a non-threatening manner, despite the fact that it was raining at the time and the hoodie helped keep him dry. And women should cover themselves so they do not inspire lust in men (a familiar idea in some religions).

Rather than critically assess their own responses to clothing, then, those who would defend the assailants in each case prefer to impose duties on would-be victims. Ironically, perhaps, the "Stand Your Ground" laws that began this discussion purport to represent a commitment to the principle that would-be victims have no duty to retreat from an assailant but that they can instead stand their ground if they have a right to be where they are. This principle ought, at the very least, to confer a privilege on minority men and on women (and on everyone else too) to wear whatever they like without thereby becoming "legitimate prey." Otherwise, we effectively impose a "duty to retreat" on the less powerful sectors of our society in the form of dress codes that hold that by wearing a hoodie, a low-cut shirt or revealing dress, or some other prohibited outfit, a person can be said to have forfeited the right to be free of violent predation.

Tuesday, April 17, 2012

Last week I attended a lecture by Professor Hanno Kube of Gutenberg University on the European Debt Crisis and the Rule of Law. Professor Kube made a number of very interesting points about the origins of the crisis, the impact of the crisis and the response on democratic governance in the member states of the European Union, and the relation of the EU Treaty organization to other treaties signed by EU member states. Here, however, I want to focus on a narrower argument that he also presented. It went more or less like this: 1) Article 125 of the EU Treaty forbids the EU or its member states from assuming the debts of any member states; 2) the bailout package for Greece is a de facto assumption of Greek debt; and 3) therefore the bailout package violates Article 125. Here I want to focus primarily on move 3, and then I'll say something about what this argument might entail for U.S. statutory interpretation.

First, as the wording of move 2 concedes, the bailout package was not a literal violation of Article 125. The latter provides:

The Union shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of any Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project. A Member State shall not be liable for or assume the commitments of central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of another Member State, without prejudice to mutual financial guarantees for the joint execution of a specific project.

Thus, Article 125 forbids liability for, or assumption of, the debts of a member state (or its subdivisions) by the EU or a member state. However, the Greek bailout was structured as a complicated combination of debt swaps (with a haircut) by lenders, loans from the European Financial Stability Facility, commitments to austerity by the Greek government, and other provisions--none of which directly amounted to the EU or a member state assuming Greek debt. It's true, of course, that the whole point of the bailout was for money coming ultimately from other EU member states to enable Greece to discharge (some of) its existing debt, and so the complete package was substantially equivalent to an assumption by the EU and its member states of (some) Greek debt. But a textualist might say that Article 125 does not forbid the equivalent of debt assumption; it only forbids actual debt assumption.

Textualism of the sort championed by Justice Scalia has not had much influence in Europe, however, and Professor Kube is no exception. Based on the "legislative" history of the EU treaty instruments and the objective purpose of Article 125, Professor Kube said it was common knowledge in Europe that Article 125 means "no bailouts." Interestingly, he said that most of the people in Europe who have argued for the legality of the bailout have not made the argument based in the text of Article 125. Instead, they have made one of two moves, each of which acknowledges a violation of Article 125.

The first move is to say that the bailout is illegal but that in a crisis, the laws are silent, a variant on the Latin principle, inter arma enim silent leges. As a modern German, Kube was horrified by this principle, because for Germans it most clearly calls to mind the political philosophy of Carl Schmitt, which has been closely associated with Nazism. That's fair enough. Schmitt in fact was a Nazi, and despite recent efforts by Eric Posner & Adrian Vermeule to domesticate Schmitt, his notion of necessity-makes-right is understandably still toxic in Europe.

The second move is what really interests me. Some in Europe say that while it's true that Article 125 reflects a purpose to forbid bailouts, that purpose itself must be read in light of the still deeper purposes of the EU Treaty. In particular, the opening provisions of the Treaty recite objectives that would be profoundly undermined by the prospect of one or more countries in the EU defaulting on their obligations and potentially plunging the whole continent into economic (and potentially political) chaos. These background purposes include: European solidarity; democracy; "balanced economic growth and price stability"; and other principles.

When asked (by me) why these deeper purposes did not suffice to validate the bailout, Professor Kube responded with the familiar canon of construction that the specific trumps the general. It's true, he said, that the EU Treaty sets forth general objectives, but they are to be pursued by the specific means set forth in the treaty. And one of the specific means denied to the EU is bailouts. My response was that in fact Article 125 does not literally deny the EU all means of making bailouts, so I wanted to know why Kube was willing to look to the general purposes of Article 125 but not to the broader purposes of the treaty as a whole in order to construe Article 125. In follow-up discussion, he espoused a principle that more or less says that just as specific text trumps general text, so specific purpose trumps general purpose--and Article 125 manifests a specific purpose to forbid bailouts.

I'm not an expert in European law, so I won't take a position on whether Professor Kube is right about the application of the principle he was defending, but I think the principle is basically sound. And I also think that the principle is not widely discussed in the American case law or academic literature on statutory interpretation. That is, the debate between textualists (like Justice Scalia) and purposivists (like Justice Breyer and--long before him--Hart & Sacks) typically focuses on whether to give effect to a statutory provision's purpose. But for purposivists there is a further question of how to discern a statutory provision's purpose. Professor Kube's addendum strikes me as important: It says that purposivism is not so different from textualism in that both ought to give priority to the specific over the general.

Elena Kagan was a recent college graduate, still considering law school.

And Sandra Day O’Connor was a newly minted Associate Justice on the United States Supreme Court.

At a commemoration of the thirtieth anniversary of Justice O’Connor’s first Term on the Court last Wednesday, Justices Ginsburg, Sotomayor, and Kagan told the audience exactly where they were when they heard the news that President Ronald Reagan had fulfilled his campaign promise to appoint the first woman Justice (Justice Ginsburg, for example, was driving home and heard it on the radio). I don’t remember exactly when I heard. I just know that this scrappy Arizonan lit a fire under me – and apparently under a lot of other women like me.

A lot of them were at Washington, D.C.’s Newseum on Wednesday night. Like me, they got there early and lined up outside on the chilly spring evening. Like me, they wanted great seats – and none were reserved, not even for judges or VIPs. Like me, they had come a long way (I from Philadelphia, the woman behind me in line from Chicago) to be one of four hundred groupies in the audience to see the four female Justices – three sitting, one retired but still full of spunk – on one stage, together, talking about what it’s like to be a trailblazing woman in an institution where 108 men but only four women have served since the Court first sat in 1789.

Those of us who follow the Court with enthusiasm agreed that it wasn’t about what Justices O’Connor, Ginsburg, Sotomayor, and Kagan said; in fact, most of their comments were familiar from speeches or interviews they’d given in the past. It was about the sisterhood, about the visual, about the montage of these four everyday women who, through four well-placed strikes of lightning, became extraordinary. It wasn’t about the politics, or the jurisprudence, or even the philosophy; it was about the laughs over exercise classes taken (or not), over huge (or small) numbers of cases heard per Term, over lunches eaten with the other Justices (or skipped). It was about the warmth, not the wardrobe (all of the four were dressed relatively casually). It was about collegiality, not competition (Justice Kagan actually seemed deferential, sitting back and listening most of the time). It was about friendship, not fanaticism (not a single decided case was mentioned).

This was an evening that gave “girls’ night out” a whole new meaning.

When I tell my students that I have lived through the civil rights era – and I make them admit under pain of death that I’m just not that old – pretty much nothing makes the point like noting that, for the first thirteen years of my life, there had never been a woman on the Supreme Court. As of 1977, just four years before Justice O’Connor’s appointment to the Court, only eight women had ever served in the federal judiciary. By 2007, there were about 500 women on the federal bench. It was only thirty years, but it was a pretty formative thirty years, both in my life and in that of the federal judiciary.

Even though she has often said that she was less concerned with being the first female Supreme Court Justice than with not being the last, I don’t know how much of the credit we can give Justice O’Connor for the uptick in women lawyers and judges over the last thirty years. One thing is sure: as more women graduate from law school and achieve more and more in the field – as Justices Sotomayor and Kagan did – having more women on the federal bench should be less and less of a surprise.

Why, then, was it so compelling to see the four female Justices together on stage? Why is it notable to see three of them together on the bench six or so mornings a month?

I asked myself those questions as I told my daughters about what it was like to be just two rows away from women who, together and individually, had made history. And I think this is the answer: It was about girl power.

It was about a certainty on the part of these four women that they had something important to contribute to what once was, let’s face it, an old boys’ club. It was about the confidence to carve out their own spaces (like the all-female exercise class Justice O’Connor founded in the Supreme Court gym) and to forge without hesitation into others (like the Justices’ dining and robing rooms).

It was about representing, as Justice O’Connor put it on Wednesday night, the fifty-one or fifty-two percent of the population that is female, and doing it with integrity and gumption and pizzazz.

And Wednesday night was about celebrating what makes women great.

I don’t remember where I was when I heard that a woman had been appointed to the Supreme Court. I was probably at cross country practice, or in my boarding school dorm room, or having dinner in the dining hall.

But the presence the four female Justices exuded on Wednesday night – that is something I will not soon forget.

Thursday, April 12, 2012

With Rick Santorum's withdrawal from the 2012 Presidential race, the punditocracy is now focusing on the possible choices for Mitt Romney's running mate, as well as on the head-to-head contest between Romney and President Obama. A few have commented on Santorum's future prospects, focusing on his assertions that "the fight is not over," and similar comments. To me, however, the most interesting question is whether Santorum will become the presumptive nominee in 2016 (or, should Romney beat the odds and be the incumbent in 2016, in 2020). Will the political class decide that it is "Santorum's turn"?

To be clear, there is no good reason why a party's presidential nomination should go to the person who is (through some mysterious process) deemed to be next in line. The party's voters can presumably find a candidate's qualities appealing (though not quite appealing enough) in one year, but not in the very different environment four or eight years later. Certainly, the Democratic Party has no tradition or pattern of rewarding also-rans in primaries with subsequent presumptive front-runner status. The Democrats, for that matter, often seem to treat their nominees who lose general elections as lepers (see Dukakis, M.), leaving those who lost in the primaries as after-thoughts, at best.

The Republicans, however, have shown a clear pattern of awarding the nomination by entitlement, at least in the last generation or so. In January, February, and into March of this year, it was fun to imagine that Romney might lose, which allowed everyone to treat the primaries as meaningful. But it was never really in doubt. Romney was next in line, and the establishment treated him that way when push came to shove. They often quite conspicuously held their noses, making it more difficult for Romney to close the deal. Still, the endorsements came when needed in Florida, in Wisconsin, and so on.

In 2008, the supposed centrist John McCain was nominated (defeating the conservative alternative, Romney), after being treated as the nominee-in-waiting for eight years, following his shockingly shabby treatment by the Bush team in 2000. Even though McCain stumbled during the pre-primary season in 2007, he was able to re-emerge from supposed oblivion, with the blessing of the party's establishment.

There was no race in 2004. In 2000, no candidate could plausibly claim to be next in line, and the race opened up to a legacy nominee, who really had no hope of winning in such a strong economy. We know what happened next. In 1996, it was Bob Dole's turn, for having been a party stalwart forever (and a one-time losing Vice Presidential candidate). 1992 was another incumbent's year. In 1988, George H.W. Bush was next in line, for having served so humbly under Reagan, after placing second in the 1980 primaries.

Admittedly, there are only a few data points to work with here. They all, however, support the next-in-line theory of Republican nominations. (As a possible datum contradicting the theory, 2000 could have been viewed as the year in which it was Dan Quayle's turn; but the party unceremoniously spurned his ambitions. His claims to be that year's "next guy in line," however, were rather weak, to say the least.)

If the theory is valid, however, one must ask: Will 2016 be a year in which it is someone's turn, or a year like 2000? One possibility is that the VP nominee in a losing 2012 race could become the next guy (or, much less likely, the next gal). Short of that, Santorum's claim would be that he is the equivalent of Romney in 2012, McCain in 2008, and Bush I in 1988. He ran surprisingly strongly. He came in a decent second place. He exited with some dignity. He stayed in the game. "I've got next!"

The counter-argument to that story is that Santorum's second place finish was pure happenstance. In a year in which stronger potential candidates refused to run (Huckabee, Palin), Romney's competition resembled little more than the alumni of a clown college. Pawlenty, Bachmann, Perry, Cain (Cain!), Gingrich, and Santorum. Punch lines all. Santorum just happened to find a billionaire to back his superPAC at a time when only the execrable Gingrich and the impossible Paul remained. Had the timing worked out differently, it could just as easily have been Bachmann who won the Iowa caucuses (which, it is easy to forget, Santorum won this year), and Santorum would have dropped out with poll numbers rounding down to zero. Furthermore, Jeb Bush (who also stayed out this year) could jump in front of everyone to be dubbed the next guy in line for 2016.

All well and good. As I am not in the prediction game (for this kind of thing, anyway), I am simply laying out some of the more obvious possible story lines for 2016. What I find interesting at this point in the analysis, however, is whether Santorum might be able to pull off what Romney and McCain pulled off in their respective years. That is, could Santorum take a hard right policy agenda into the primaries (and, in McCain's case, eight years of undermining any claim to being a moderate or a maverick), only to be viewed somehow as the moderate alternative to someone even crazier than any of the 2012 crowd?

Note that this does not actually require that Santorum run against someone who is crazier than he is. Romney was not to McCain's right in any meaningful sense in 2008, but McCain was "the moderate." Because political insiders tend to view a placid demeanor as one strong marker of being a moderate, Santorum could be re-branded as Mr. Middle. Or, at least, Mr. Has-To-Sell-Himself-to-the-Suddenly-Skeptical-Base.

Stranger things have happened. William Rehnquist is no longer viewed as an extremist Supreme Court justice. Bruce Fein is now a moderate legal commentator. The current version of Romney is somehow mistaken for an earlier version of Romney. It might take an especially strong shake of the Etch-a-Sketch to make people forget about Santorum's anti-college, anti-contraception, anti-JFK performance in 2012 (to say nothing of "man-on-dog" and the Google bomb of Santorum's name). Our political insiders, however, surely have proved over the years that they possess the arm strength to wipe Santorum's slate clean. Then, it would be Santorum's turn.

Wednesday, April 11, 2012

Last week, The New Yorker published my letter to the editor criticizing Jeff Toobin for an earlier article in which Toobin in turn had criticized Judge Brett Kavanaugh for the latter's suggestion (in his dissent in the DC Circuit version of the health care litigation) that a President could, if he thought the minimum care provision of the Affordable Care Act was unconstitutional, simply choose not to enforce the Act--even if the courts were prepared to uphold it. I wrote:

Jeffrey Toobin takes Judge Brett M. Kavanaugh to task for attributing to the President the power not to enforce a federal statute, even if the courts have upheld it (Comment, March 26th). Citing the 1803 landmark case of Marbury v. Madison, Toobin asserts categorically that this “is not how it works.” He thus overlooks a longstanding debate about the scope of judicial precedent. Thomas Jefferson declined to enforce the Sedition Act, on the ground that it violated the First Amendment, even though the courts were prepared to uphold the Act. Abraham Lincoln, in his first Inaugural Address, suggested that the Supreme Court’s infamous Dred Scott decision might not be binding beyond the parties to the case. And President Obama has declined to defend the Defense of Marriage Act, on the ground that it is discriminatory. Whatever one thinks of these and other assertions of Presidential non-enforcement power, Judge Kavanaugh did not invent the idea. I share Toobin’s view that the health-care law is valid, but I see no need to accuse a federal appeals-court judge of misunderstanding lessons that he learned in his first week of law school.

I have since received a number of emails questioning my historical examples, especially my reference to Jefferson. Because the Sedition Act expired (just) before Jefferson took office, the emailers say, Jefferson had no occasion to "decline[] to enforce" it. But he did. Although the Sedition Act could not be used as the basis for prosecutions for conduct occurring once Jefferson took office, it expressly permitted the continuation of prosecutions for conduct taking place during the time when it was in force. Jefferson found such a prosecution and ordered it dropped. He also issued pardons to those people who had been convicted under the Sedition Act and were still serving sentences.

A couple of my email interlocutors persisted in the contention that granting pardons and dropping a pre-existing prosecution do not amount to declining to enforce. Only the refusal to initiate new prosecutions, these emailers contended, would qualify as non-enforcement, and because the statute would not allow Jefferson to initiate any such new prosecutions for alleged sedition while he was in office, he really did have no occasion not to enforce the law. With due respect, the emailers are using "enforce" in a highly idiosyncratic way. Jefferson himself characterized his own actions in just the way that I did. For example, in a July 1804 letter to Abigail Adams, Jefferson wrote:

I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest its execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship the image.

So it is clear that Jefferson regarded the pardons and the nolle prosequi as an exercise of his power not to execute, i.e., not to enforce, a law he deemed unconstitutional. In short, I think I'm right and my email interlocutors are using the word "enforce" in an idiosyncratic way (to say the least).

One might also quibble with my other examples: Neither Lincoln nor Obama asserted a "non-enforcement" power in the examples I give. But then, I offered them as instances of a "debate about the scope of judicial precedent." Lincoln's statement clearly fits that description. Meanwhile, the whole point of the Obama enforce-but-don't-defend strategy is to tee the issue up for the courts, even while the Administration takes the view that it need not argue every position that existing judicial precedent leaves open. So that too, it seems to me, fits within my invocation of a debate about the scope of judicial precedent. The only words I would change if I could are "these and other," since they suggest that all three examples were "assertions of Presidential non-enforcement power." As the introductory information and description of the examples themselves make clear, I didn't intend them exactly that way. I think the letter would have been better had it substituted "any particular" for "these and other." But between the combination of my dashing the letter off so it would be timely and then having to approve edits for length, I didn't notice the implication. So the critics--none of whom actually parsed the letter as closely as I just have--make a fair point about the wording on this point.

Meanwhile, I think the underlying substantive issue is quite difficult, which is why my New Yorker letter merely says that Judge Kavanaugh did not invent the notion of executive non-enforcement. I did not say what I thought the proper scope of the power should be. The question is this: When may a President decline to enforce a law on grounds of unconstitutionality even though the courts would uphold, or have already upheld, the law?

It seems to me there are three possibilities, none of them entirely satisfactory: 1) Always; 2) Never; 3) Sometimes.

1) A very strong "departmentalist" view along the lines championed in recent years by Larry Kramer would emphasize that the President heads a co-equal branch of government. In this view, the power to say what the law is that the Supreme Court asserted in Marbury is only a power to say what the law is in the context of contested cases, but does not bind other actors. Congress and the President have prudential grounds for not enacting or enforcing laws that they know the courts will strike down, in the departmentalist view, but they do not have any principled or prudential grounds to subordinate their views about what the Constitution requires when those views are stricter than the views of the courts.

The chief problem with strong departmentalism is that in the name of asserting the President's co-equality with the courts, it arguably makes the President superior to Congress. A President who happens to think a duly enacted law is invalid can choose to thwart the will of the majority that enacted the law--which may have been signed by a predecessor or enacted by a congressional super-majority over his own veto or perhaps even signed by this very President because of other provisions he liked, in which case his non-enforcement of a select provision is tantamount to an impermissible line-item veto. Accordingly, the President's say-so alone is a problematic basis for the exercise of a non-enforcement power.

2) It may therefore be tempting to go all the way in the opposite direction and reject departmentalism entirely. In this view, a President would have no power to non-enforce, except perhaps in circumstances in which he was anticipating that the courts would deem a law invalid. Even then, the better course might be thought to adopt the Obama Administration's position on DOMA: Enforce but don't defend, so as to facilitate a justiciable case or controversy, and then if the courts definitively uphold the law, simply enforce it. Perhaps even non-defense should be ruled out. The most vigorous academic defense of the strongly judicial supremacist view was offered some years ago by Larry Alexander and Fred Schauer, who defend it principally on coordination grounds: The point of law, including the Constitution and constitutional law, they say, is to settle things, and treating the Supreme Court's interpretation of the law as definitive does a very good job of settling things.

The chief problem with the strongly judicial supremacist view is that the law is not only about settlement. Constitutional law in particular is also about protecting certain substantive ideals and we can imagine circumstances in which the courts have abdicated their role in protecting those ideals. Jefferson thought -- and history has judged that he was correct in thinking -- that the Federalist-packed judiciary was not doing its job by upholding the Sedition Act, which was a betrayal of a core ideal of constitutional liberty. (For Jefferson himself, perhaps the underlying ideal was federalism rather than liberty, because, as his letter to Abigail Adams shows, he was comfortable with state sedition laws. But put that aside. History has vindicated Jefferson's free speech views on libertarian rather than federalism grounds.) Should Jefferson have subordinated his view of the First Amendment to the views of the courts? Suppose that World War II had dragged on for several more years and that Congress had enacted a law specifically authorizing mandatory evacuation of Japanese Americans from the West Coast. Would it have been illegitimate for a President to choose not to enforce such a law on the ground that he thought it unconstitutional, notwithstanding the Supreme Court's contrary view in Korematsu? The tendency of the Supreme Court from time to time to produce not just wrong, but disastrously wrong decisions, leads one to wonder whether some power of Presidential non-enforcement might not be vital as a safety valve.

3) Thus, it is tempting to reject both strong departmentalism and strong judicial supremacy in favor of some middle path in which the President can non-enforce a law that is blatantly or grossly unconstitutional, even though the courts disagree, but which rejects a power of non-enforcement whenever the President happens to disagree with the courts.

The chief problem with this intermediate view is its mushiness. In what sense is a law blatantly or grossly unconstitutional if the courts, including perhaps the Supreme Court, have said or would say that it is in fact constitutional? Any criteria a President uses to distinguish extreme cases from routine cases will likely be controversial, precisely because there will almost always be controversy around just those cases in which the President is tempted to use a non-enforcement power. If we look to Presidents' assertions of a non-enforcement power, we typically find that they arise amidst very heated political contests. The judgment of history rejects the Sedition Act and Korematsu, but the judgment of history does not come until long after the President faces the decision whether to non-enforce.

If I were writing a law review article or the like, I would now attempt to say which of the foregoing options I find best, all things considered, or perhaps I would offer some clever way out of the puzzle. But I'm not writing a law review article on this subject, so I won't. There is a substantial and growing body of academic literature that addresses the matter in substantially greater detail. Interested readers can go look that up.